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March 3, 2012

China's popular reality show: "Interviews Before Execution"

This lengthy Daily Mail piece tells the remarkable story of a remarkable hit on Chinese television. The piece carries this lengthy headline: "The Execution Factor: It was designed as propaganda to deter would-be criminals. Instead interviews on death row have become China's new TV hit." Here are excerpts:

With her silk scarves and immaculate make-up, Ding Yu looks every inch the modern television presenter. Indeed, for the past five years she has hosted a hugely successful prime-time show in China which has a devoted following of 40 million viewers every Saturday night.

But while in Britain the weekend evening entertainment will be The X Factor or Strictly Come Dancing, Ms Ding’s show features harrowing -- some would say voyeuristic -- footage of prisoners confessing their crimes and begging forgiveness before being led away to their executions. The scenes are recorded sometimes minutes before the prisoners are put to death, or in other cases when only days of their life remain.

The glamorous Ms Ding conducts face-to-face interviews with the prisoners, who have often committed especially gruesome crimes. Her subjects sit in handcuffs and leg chains, guarded by warders. She warms up with anodyne questions about favourite films or music, but then hectors the prisoners about the violent details of their crimes and eventually wrings apologies out of them.

She promises to relay final messages to family members, who are usually not allowed to visit them on death row. The cameras keep rolling as the condemned say a farewell message and are led away to be killed by firing squad or lethal injection....

Officials in the ruling Communist Party regard the series as a propaganda tool to warn citizens of the consequences of crime. Inmates are selected for Ms Ding by judiciary officials who pick out what they consider suitable cases to ‘educate the public’. So far, the show’s makers claim, only five condemned prisoners who were asked have refused to be interviewed.

Convicted criminals in China can be put to death for 55 capital crimes, ranging from theft to crimes against the state. However, the show focuses exclusively on murder cases, conspicuously avoiding any crimes that might have political elements. The case that has drawn the largest number of viewers so far is that of Bao Rongting, an openly gay man who was condemned to death for murdering his mother and then violating her dead body....

The series has made a household name of Ms Ding, who is married and has a young son. She is often recognised in the street while doing her shopping with her family. Denying her show is exploitative, she said: ‘Some viewers might consider it cruel to ask a criminal to do an interview when they are about to be executed. On the contrary, they want to be heard. When I am face-to-face with them I feel sorry and regretful for them. But I don’t sympathise with them, for they should pay a heavy price for their wrongdoing. They deserve it.’...

Lu Peijin, the boss of TV Legal Channel in Henan province, said Ms Ding came up with the concept for the show and he agreed immediately, but that getting approval from officials was a long process. ‘I thought it was a great idea right away,’ said Mr Lu, who said that the stated aim of the show was not to entertain but to ‘inform and educate according to government policy. We want the audience to be warned,’ he said. ‘If they are warned, tragedies might be averted. That is good for society.’

I am intrigued and fascainated by the plausible suggestion that many condemned prisoners might want this kind of last chance to be heard. Also notable is the suggestion that educative and deterrence goals of the death penalty might be served by this kind of reality show. And, I cannot help but wonder if somewhere Nancy Grace is thinking about how she might develop a US version of this show.

"Blinded by the Hate: The Real Problem With Judge Cebull's Email"

Not surprisingly, two prior posts (here and here) discussing the controversies surrounding Chief District Judge Cebull's unjudicious decision to forward a racially charged e-mail have generated lots of heated and interesting discussion in the comments. I suspect this new commentary from The Huffington Post by Michael Keegan, the President of People For the American Way, which shares a headline with the title of this post, will likewise get folks buzzing. Here are excerpts:

Earlier this week a Great Falls Tribune reporter found something startling in his inbox: a shockingly racist and misogynistic email forwarded from the most powerful federal judge in Montana, which "joked" that the president of the United States was the product of his mother having sex with a dog. The story soon became national news, with groups like ours calling on Judge Richard Cebull to resign.

Cebull quickly apologized to the president and submitted himself to a formal ethics review, somewhat quelling the story. But the story is about more than one judge doing something wildly inappropriate and deeply disturbing. It's about a conservative movement in which the bile and animosity directed at the president -- and even his family -- are so poisonous that even someone who should know better easily confuses political criticism and sick personal attack. Come on: going after the president's late mother?...

Judge Cebull is hardly alone in using the old "I'm not racist, but..." line. In fact, his email was the result of an entire movement built on "I'm not racist, but..." logic that equates disagreement with and dislike of the president with broad-based, racially charged smears. These smears, tacitly embraced by the GOP establishment, are more than personal shots at the president -- they're attacks on the millions of Americans who make up our growing and changing country.

Mainstream conservatives have genuine objections to President Obama's priorities and policies. But since he started running for president, a parallel movement has sprung up trying to paint Obama as an outsider and an imposter -- in unmistakably racially charged terms....

Judge Cebull needs to take responsibility for his own actions. And if the GOP has any aspirations of providing real leadership to this country, it needs to jettison the deeply personal vitriol being direct against Barack Obama and start talking about real issues. When a federal judge has seen so much racially-charged propaganda against the president of the United States that he can claim not to know the difference between genuine disagreement and offensive personal smears, something in our discourse has gone terribly awry.

Pot prosecutions dismissed on state constitutional grounds in Nevada

This local article, which is headlined "Nevada's pot distribution law called unconstitutional," provides an interesting (and somewhat confusing) report on a state constitutional ruling that led to the dismissal of two marijuana prosecutions in the Silver State. Here are the basics:

A District Court judge declared the state's law allowing medical marijuana distribution unconstitutional on Friday, calling it "ridiculous" and "absurd." In a strongly worded order, Judge Donald Mosley dismissed a drug trafficking case against Nathan Hamilton and Leonard Schwingdorf, who said they had supplied the herb to patients unable to grow it themselves.

"It is apparent to the Court that the statutory scheme set out for the lawful distribution of medical marijuana is either poorly contemplated or purposely constructed to frustrate the implementation of constitutionally mandated access to the substance," Mosley wrote in his decision.

Mosley, who retired from his judgeship Friday, added that he "is not a proponent of medical marijuana" but that he was sworn to uphold the state's constitution. Mosley, who has long suggested the medicinal herb law is "mind boggling," previously had dismissed the case over a legal technicality before the district attorneys recharged the two men....

[Defense attorney Bob] Draskovich has said the only way a patient can now legally possess marijuana is to first commit a crime to obtain it. By not clearing the way for a patient to legally obtain marijuana, the Legislature failed to abide by the amendment to the state constitution that led to the enactment of the law, the lawyer has said.

Mosley agreed. "The law falls short however in providing a realistic manner in which a qualified purchaser and a qualified distributor of marijuana may function, thus frustrating the clear intent of the Nevada Constitutional Amendment," the judge's decision read.

Under the amendment, ratified by Nevada voters in 2000, "the Legislature shall provide by law for ... appropriate methods for supply of the plant to patients authorized to use it." As it stands, one Nevada law allows medical marijuana cardholders to possess, deliver or produce minute amounts of marijuana for pain relief. But other state laws make it illegal to buy or sell marijuana, leaving no realistic way for patients to obtain the herb.

Prosecutors say local marijuana dispensary staff, such as Hamilton and Schwingdorf, suggested a specific cash donation for the marijuana, which under state law qualifies as "consideration" and is illegal. Also, the dispensaries were growing an abundance of marijuana plants, more than the seven plants allowed under the medical marijuana law.

By disallowing any payment for the herb, patients must rely on the good will of others to obtain the substance, which Mosley found ludicrous. "It is absurd to suppose that from an unspecified source 'free' marijuana will be provided to those who are lawfully empowered to receive it," Mosley wrote.

Mosley also criticized the amount of marijuana allowed to be produced by a purveyor. The law allows someone registered to possess 1 ounce, three mature plants and four immature plants at one time, meaning a person could arguably only hold one dose at a time. "This arrangement is of course ridiculous and in effect would make impossible any commercial distribution of medical marijuana," Mosley said.

Mosley's decision contradicts another from a Clark County judge allowing prosecution of six defendants from Jolly Green Meds. That co-op was busted by Las Vegas police, who alleged it was distributing marijuana for compensation in the form of donations. District Judge Douglas Smith had earlier denied a motion to dismiss the case, acknowledging the Legislature did not appropriately address "methods of supply of medicinal marijuana to patients authorized to use it." Smith halted the prosecution because he expected an appeal of his decision.

With Smith allowing that case to go forward and Mosley tossing another, the Supreme Court is expected to hear the appeals and resolve the clash of legal opinions. The state's high court either could direct the district courts to move forward with trials based on the criminal statutes or force the Legislature to review the medical marijuana law.

More than a dozen defendants in several cases are facing criminal charges for distributing medical marijuana. The defendants say they were trying to fill a void left by the Legislature and supply medical marijuana to patients unable to grow it themselves. But authorities have cracked down and closed nearly all the local entities distributing marijuana to state-registered patients because, the authorities allege, the cooperatives are violating Nevada law.

Interesting discussion of women and the death penalty in Oklahoma

As detailed on this DPIC page, Oklahoma is tied with Texas for the most executions of women (three) in the modern death penalty era. For that reason and others, I found interesting this local story, headlined "Women rarely given death penalty in Oklahoma for crimes," discussing the intersection of gender and the death penalty in the Sooner State. Here are excerpts:

“Experts have been hesitant to say for sure whether there's gender bias going on, but certainly women are rarely executed,” said Richard Dieter, executive director of the Death Penalty [Information] Center....

Dieter said women who committed these types of crimes in the early 20th century might have been dealt with outside of the criminal justice system and thought to be mentally unstable. “Mothers did kill children and husbands, but they were dealt with sort of outside. It was unexpected. It was dealt with quietly, perhaps, through a mental facility,” he said. “Because it was so rare, that was something that was supposed to teach a lesson to deter other crimes.”

To receive the death penalty, Dieter said, women often must commit some type of aggravated offense. Women are more likely to kill relatives or spouses, but less likely to commit heinous crimes, he said.

About 10 percent of murders are committed by women, but only 2 percent of death sentences are given to women. Even then there's a chance of overturning the sentence, so even fewer women are executed, Dieter said. “Oklahoma has had 97 executions (since 1976). But for three of them to be women in the modern era, that's 3 percent. Nationally, it's less than 1 percent,” he said.

Jerry Massie, spokesman for the state Department of Corrections, said Oklahoma is No. 1 in the nation for the number of women incarcerated on a per-capita basis. He said the state has about 2,600 female offenders. Of that number, 122 women are serving life sentences with the possibility of parole and 53 are serving life without the possibility of parole, Massie said....

Oklahoma currently has one woman on death row — Brenda Andrew — who was sentenced to die for the Nov. 20, 2001, fatal shooting of her husband, Oklahoma City ad executive Rob Andrew....

Wanda Jean Allen, a black woman convicted of killing her lesbian lover in 1988, was the first woman executed by lethal injection in Oklahoma. It was January 2001. She was the first woman put to death in the state since 1903, four years before statehood.

Oklahoma County Assistant District Attorney Sandra Elliott, the prosecutor on the case, said she sought the death penalty because Allen had a prior assault and manslaughter case. Throughout her 27 years with the district attorney's office, Elliott has handled many death penalty cases for men but only one for a woman.

Dieter said he thinks jurors sometimes give women the death penalty if they can't relate to her or the crime she committed. Some jurors might see women as victims, he said.

Elliott disagreed, saying the jury's decision is often based on the nature of the offense and the defendant's criminal history. “It's hard to seek the death penalty against anybody. The vast majority of citizens here don't want to kill anybody,” Elliott said. “If you're like the average person, it's difficult to ask anyone to do that job.

March 2, 2012

"Man Gets 2 Years For Semen Sample At Sunflower Market"

The title of this post is the headline of this local report of a federal sentencing in New Mexico. Here are some of the distasteful details:

A man has been sentenced to federal prison for tricking a woman into tasting his semen at the Sunflower Market.

Police arrested former Sunflower Market employee Anthony Garcia for putting his own semen onto a spoon and tricking a woman into tasting it. Garcia told the judge Thursday that he didn't know the consequences were going to be high, and he apologized to the victim and Sunflower Market.

However, in a rare move, the judge sentenced Garcia to 24 months in federal prison, which is more than the 12 to 18 months expected. "It doesn't happen a lot. A judge really has to be particularly concerned with the kind of offense conduct to go up," said U.S. District Attorney Ken Gonzales.

Prosecutors said Garcia tricked four women into sampling the semen and watching their reactions, and DNA tests proved Garcia was responsible. They said that Garcia's criminal history also factored into the stiffer penalty.

"There is one incident in a local Walmart where he flashed his private parts, where he flashed a young lady who was in the store," Gonzales said. Gonzales said Garcia also flashed a jogger on the Bosque.

Before she handed down the sentence, the judge told Garcia that what he did was despicable, heinous and horrendous. At one point, the judge told Garcia she's practically speechless in trying to articulate just how offensive it is....

Garcia has been ordered to serve his sentence at the Bureau of Prisons in Stafford, Ariz. He's also ordered to take psychosexual evaluations and undergo sex offender treatment Garcia has a case pending in district court of criminal sexual contact of a minor, kidnapping, and bribery, which is set for trial in April.

There are a lot of interesting legal elements to this case, including the remarkable fact that the guidelines recommended such a low prison sentence for this "despicable, heinous and horrendous" behavior and yet often recommends a sentence many, many years longer for downloading child porn. Perhaps this case represents one of those rare examples in which the applicable guidelines actually recommend a sentence that is insufficient to achieve the 3553(a)(2) punishment purposes.

Especially because it is late on a Friday afternoon after a long week, I hope folks do not find this sentencing story to leave them with a bad taste going into the weekend. (Sorry, lame and tasteless jokes here are just too easy.)

UPDATE:This news report about the sentencing (which looks like a reprint of a Justice Department press release) explains the federal charges to which this defendant pleaded guilty:

Thursday afternoon, a U.S. District Judge in Albuquerque sentenced Anthony Garcia, 32, of Albuquerque, to a 24-month term of imprisonment for his conviction for adulterating food with semen and making false statements to federal investigators during a criminal investigation. Garcia will be on supervised release for three years after completing his prison sentence. Garcia also was ordered to pay restitution to the victim of his criminal conduct. Garcia was arrested on July 13, 2011, based on a two-count indictment charging him with (1) adulterating food with semen; and (2) making false statements during the course of a federal investigation. Garcia has been in federal custody since his arrest.

New ABA mega-study doesn't call for moratorium on executions in Missouri

As detailed in this local article, which is headlined "Missouri death-penalty cases should be reduced, study says," the ABA has released another massive study of a state's death penalty system and — surprise, surprise — it does not like all of what it sees. Here are the basics:

Missouri should narrow the kinds of cases subject to the death penalty so that only the most serious murders are eligible, according a two-year study sponsored by the American Bar Association. The state also should prohibit the execution of the severely mentally ill and do a better job of preserving forensic evidence such as DNA samples.

The study, which does not take a position on whether the death penalty should be legal, was released Thursday and conducted by a panel of law professors, private attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents.

They said serious problems with the death penalty in Missouri must be addressed to ensure fairness in the system and prevent an innocent person from losing his or her life. “It is the ultimate penalty, and we’ve got to get it right every time,” said Douglas Copeland, a St. Louis attorney who served on the panel.

The full ABA study of Missouri's capital system is available at this link. As the press report indicates and as my post title notes, an interesting aspect of this Missouri report seems to be that the ABA team has not called for a moratorium on executions in the Show Me state:

The report is not entirely critical of Missouri’s death penalty system. It praises Missouri for having a state-run public defender’s system, crime labs that are accredited, and for maintaining an independent judiciary.

Missouri is the 10th state for which the American Bar Association has released an analysis of its death penalty system. After a similar study in Kentucky, the ABA recommended in December that lawmakers put a moratorium on the death penalty until a host of problems and inconsistencies could be fixed.

It did not go that far in Missouri, a point that was praised Thursday by the Missouri Association of Prosecuting Attorneys. “They obviously realize that, while there is always room for improvement, Missouri’s criminal justice system is fundamentally sound,” president Bob McCulloch said in a statement.

I have commented before concerning the ABA assessment reports in other states that I fear these mega-documents, though containing lots of useful information about a state's experiences with the death penalty, have not always been presented in ways that could have maximum practical impact. But, as I have now learned from direct experience with Ohio's new Joint Task Force examining the death penalty in the Buckeye state, these mega ABA reports can and general will help provide a benchmark and framework for any later capital reform discussions within a state.

Alaska Chief Justice assails state's sentencing guidelines rules

As reported in this local article, sentencing and corrections reform is a topic of discussion in debate outside the lower 48. The article is headlined, "Chief Justice rips state's sentencing guidelines: Juneau-based justice tell Legislature new 'smart justice' strategies are needed." Here are excerpts:

The chief justice of the Alaska Supreme Court told the Alaska Legislature the state’s judges would like to be able to help them reduce prison costs and protect the public, but the Legislature won’t let them. “Under our state’s presumptive sentencing guidelines, in place since 1978, the judge’s role in sentencing is really quite limited, the range of most sentences is prescribed by law,” Walter “Bud” Carpeneti said.

He addressed a joint session of the House of Representatives and Senate on Wednesday, and told the legislators new studies are showing how recidivism can be reduced and keep people out of prison. Tough early action when those on probation miss appointments or fail drug tests is just one example, he said....

Most sentences are not decided by judges, he said, but are plea bargains between prosecutors and defense attorneys. “Judges today are rarely called on to participate in the sentencing process,” Carpeneti said. “In the vast majority of cases they simply approve or disapprove a sentence,” he said.

While judges technically have the authority to reject a plea agreement that is rarely done. Only about 5 percent of all cases wind up without a plea bargain, he said. “Open sentencing, where the prosecution and the defense have not agreed on the ultimate sentence in advance is quite rare,” he said.

Even in those cases, the presumptive sentences mandated by the Legislature narrow the judges’ role in the process, he said. “Sometimes it resembles following an elaborate cookbook more than anything else,” he said.

That’s resulted in too many people in prisons when there might be better options, he said. The state’s prison population is heavily young, male and of color, and results in many people spending their formative years in prison when it would be better to have many of them in their communities. “Too many of Alaska’s young men, particularly our young men of color, are spending their early adulthoods in our prison system,” he said....

“Today we have scientific corrections research that shows us what intervention strategies work best,” he said. Because of presumptive sentencing rules, judges can’t use that knowledge to prevent future crimes and reduce prison costs, he said. What the state needs, he said, is “smart justice.”

March 1, 2012

Not surprisingly, today's story about a federal district judge forwarding a racially charged email about President Obama is generating buzz in places other than this blog's comments. Via two posts from How Appealing, here is some of that buzz:

"Human rights groups, citizens call on Cebull to step down": The Great Falls (Mont.) Tribune has this news update.

In a long discussion at the end of a long opinion, the First Circuit yesterday weighed in on the various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader. Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Kearney, No. 10-2434 (1st Cir. Feb. 29, 2012) (available here), and here are some notable snippets:

Under § 2259, restitution may only be awarded to a "victim," which "means the individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2259(c). Kearney contends that it is "unclear" that Vicky is a victim of Kearney's conduct, with little explanation.

Vicky is plainly a victim of Kearney's crimes. Any argument that Vicky has not suffered harm as a result of Kearney's crimes defies both fact and law....

It is clear to us that Congress intended some causal link between the losses and the offense to support the mandated restitution. However, in this statute, Congress also did not specify the level of causation except in one place -- the catch-all clause of the definition of losses, 18 U.S.C. § 2259(b)(3)(F).

With the exception of only a Fifth Circuit panel (which relied on the difference in language between the catch-all clause and the other clauses) in an opinion which has been vacated for rehearing en banc, In re Amy Unknown, 636 F.3d at 198-201, all other circuit decisions have said they interpret the statute as using a proximate causation standard connecting the offense to the losses.... The government does not dispute that a proximate cause test applies.

This seeming agreement on a standard suggests more harmony than there is. On rather similar facts the circuits have reached different outcomes in applying the proximate cause test, and those outcomes cannot be entirely explained by differences in the facts of record. Compare Monzel, 641 F.3d at 537-40 (finding proximate cause but remanding to determine the amount of harm so caused), and McDaniel, 631 F.3d at 1209 (holding that the district court did not clearly err in finding proximate cause), with McGarity, 2012 WL 370104, at *37-38 (finding that proximate cause was not established); Aumais, 656 F.3d at 154-55 (same), and Kennedy, 643 F.3d at 1263-65 (same). In our view, any proximate cause standard must be understood and applied in terms of the precise language of the statute and the clear intentions of Congress....

The restitution statute was enacted against a body of Supreme Court case law explaining the type of harm caused by distribution and possession of child pornography, including psychological harm, as discussed above. These cases make clear that injury to the child depicted in the child pornography, including injury that will require mental-health treatment, is a readily foreseeable result of distribution and possession of child pornography.

"The Lives of Juvenile Lifers: Findings from a National Survey"

The title of this post is the title of this important and timely new report from the folks at The Swentencing Project. Here is how the report is described in an e-mail I received today:

The Lives of Juvenile Lifers presents findings from the first-ever national survey of this population, a comprehensive look that offers new perspectives on people who committed crimes before the age of 18, and some as young as 13. More than 2,500 people are currently serving these sentences in the United States.

The report comes just weeks before the Supreme Court hears oral arguments in the cases of two 14-year olds, Miller v. Alabama and Jackson v. Hobbs, which will address questions about the constitutionality of sentencing teens to life without the possibility of parole.

“Most juveniles serving life without parole sentences experienced trauma and neglect long before they engaged in their crimes,” stated Ashley Nellis, research analyst of The Sentencing Project and author of the report. “The findings from this survey do not excuse the crimes committed but they help explain them. With time, rehabilitation and maturity, some of these youth could one day safely re-enter society and contribute positively to their families and their communities.”

The Lives of Juvenile Lifers survey draws a portrait of the severe disadvantage experienced by those serving life sentences without parole:

Juvenile lifers were exposed to high levels of violence in their homes (79%) and their communities (54.1%).

African American youth constitute 43.4% of life without parole sentences for a murder with a white victim, nearly twice the rate at which they are arrested for such crimes, 23.7%.

Failed by systems intended to protect youth, many juveniles sentenced to life without parole first suffer from extreme socioeconomic disadvantage, and are then sentenced to an extreme punishment deemed unacceptable in any other nation.

As reported in this post from last summer, a split Ninth Circuit ruled in a pair of cases that "given the California state courts’ wide latitude to modify ongoing probationary terms under California state law, the federal district courts in calculating criminal history points for purposes of safety valve eligibility must credit state orders terminating probationary sentences." The dissenting opinion to this original panel ruling lamented that the "troubling effect of the majority’s holding is that, where convicted federal defendants are facing imposition of federal statutory mandatory minimum sentences in upcoming sentencing proceedings in federal court, it is a state court that will decide whether imposing that mandatory minimum is appropriate."

As reported via this new order, that panel opinion is no longer good law because the Ninth Circuit has decided to take up this matter en banc. The lead case is US v. Yepez, and it will be interesting both to see what the en banc Ninth Circuit ultimately rules and whether this matter might ultimately grab the Supreme Court's attention.

Should Congress investigate federal judge who forwarded racially charged email about President Obama?

The question in the title of this post is prompted by this local story out of Montana, which is headlined "Chief U.S. District Judge sends racially charged email about president." Here are the details:

Chief U.S. District Judge Richard Cebull on Wednesday admitted to sending a racially charged email about President Barack Obama from his courthouse chambers. Cebull, of Billings, was nominated by former President George W. Bush and received his commission in 2001 and has served as chief judge for the District of Montana since 2008.

The subject line of the email, which Cebull sent from his official courthouse email address on Feb. 20 at 3:42 p.m., reads: "A MOM'S MEMORY." The forwarded text reads as follow:

"Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.

"A little boy said to his mother; 'Mommy, how come I'm black and you're white?'" the email joke reads. "His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!'"

Cebull admitted Wednesday to sending the email to seven recipients, including his personal email address. The judge acknowledged that the content of the email was racist, but said he does not consider himself racist. He said the email was intended to be a private communication. "It was not intended by me in any way to become public," Cebull said. "I apologize to anybody who is offended by it, and I can obviously understand why people would be offended."

Cebull said his brother initially sent him the email, which he forwarded to six of his "old buddies" and acquaintances. He admitted that he read the email and intended to send it to his friends. "The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan," Cebull said. "I didn't send it as racist, although that's what it is. I sent it out because it's anti-Obama."

Cebull said he does not consider himself prejudice against people of other races or ethnic backgrounds, and that his actions in his courtroom have demonstrated that. "I have never considered myself that way," Cebull said. "All I can emphasize is I've treated people in my courtroom all these years fairly. I don't think I've ever demonstrated racism. Nobody has ever even implied it."

Montana immigration attorney Shahid Haque-Hausrath was on the receiving end of a racially charged email sent by a top Immigrations and Customs Enforcement official last fall. That official was suspended after sending Haque-Hausrath an email implying that Muslim Americans must prove their allegiance to the United States. Haque-Hausrath, who is in an interracial marriage and recently fathered a child with his wife, said Cebull's e-mail was "deeply troubling."...

One of the recipients of the email Cebull sent forwarded it to another person, who in turn forwarded it to another person. The email was eventually pass along to the Great Falls Tribune, who contacted Cebull. Cebull said he was surprised the recipients of the e-mail passed it along with his name on it.

As regular readers know, a number of members of Congress and a few Justice Department officials, drawing from recent research by the US Sentencing Commission, have expressed recent concerns about a potential increase in racial disparities in sentencing now that the guidelines are advisory. I generally think that any such disparity, if it truly exists and is not just correlated with other legitimate factors, is more likely to result from some judges perhaps being more inclined to give more below-guideline sentences to middle-class white offenders than to others. But this story certainly should provide fodder for the notion that a few judges might be distinctly disinclined to be sympathetic to certain types of offenders and might reasonably prompt some folks in Congress to consider investigating Judge Cebull's sentencing record.

"Will Ex-Inmates Who Get Jobs Commit Fewer Crimes?"

The question in the title of this post is the headline of this new entry by Ted Gest over at The Crime Report. Here is how it starts:

The poor national economy has thwarted the notion that most of the 700,000 people released from prison each year can find employment, but criminologists believe it's still important to track who finds work and who doesn't.

In a briefing this week for congressional staff members and others in Washington, D.C., Robert Apel of New Jersey's Rutgers University suggested that success in getting jobs could serve as a "signal to identify people who will desist from crime."

Apel and fellow criminologist Shawn Bushway of the University at Albany wrote the lead article in the new issue of the American Society of Criminology's Journal Criminology & Public Policy.

Bushway, who also spoke at the briefing in the U.S. Capitol Visitors Center, said that employment of former inmates, even if it is not always successful, can serve an important function as a "risk predictor." The same offender who is motivated enough to find a job may also be one who will stop committing crimes, Bushway explained.

In their paper, Apel and Bushway write that their review of studies done on the subject suggests that employers should not automatically reject all offenders for jobs. Some employers, they said, "may already be using completion of employment training programs (either pre-release or post-release) to identify 'good employees' from the pool of low-skill labor." The criminologists questioned state laws that ban offenders from entire categories of work.

Two executions in two states close out February

The US death penalty took full advantage of the extra day of February as reported in this Reuters article, headlined "Arizona and Texas carry out executions":

A Texas man who confessed to being the ringleader of a ruthless band of murderers was executed by lethal injection on Wednesday, hours after an Arizona man convicted of strangling and stabbing his adoptive mother was put to death.

George Rivas, 41, was executed at a prison unit in Huntsville, Texas, for his role in the murder of police officer Aubrey Hawkins outside an Oshman's Superstore on Christmas Eve 2000 in Irving, next to Dallas. Earlier in the day in Arizona, Robert Henry Moormann, 63, died at 10:33 a.m. local time at the state prison complex in Florence, about 60 miles southeast of Phoenix, state officials said.

Rivas was the confessed ringleader of a group that came to be known as the "Texas Seven," a band of convicted robbers, rapists, and murderers that broke out of a maximum security prison in Karnes County about an hour southeast of San Antonio on December 13, 2000. Before he escaped, Rivas had been serving 17 life sentences for several crimes, including aggravated kidnapping, according to the Texas Attorney General's office....

Rivas was the second person executed this year in Texas, which executed 13 people in 2011 and has put to death more than four times as many people as any other state since the United States reinstated the death penalty in 1976, according to the Death Penalty Information Center.

In Arizona, Moormann was serving a sentence of nine years to life at the Florence prison for kidnapping an 8-year-old girl when he was given a compassionate three-day furlough in January 1984 to visit with his mother. Authorities said Moormann bound and gagged the 74-year-old woman at the motel where she was staying, before he strangled and stabbed her. He later chopped her body up and disposed of the parts in dumpsters throughout Florence....

In a flurry of last-minute appeals, defense attorneys sought to block the execution by claiming that the convicted murderer was mentally retarded and cannot legally be put to death. Attorneys also objected to the state changing the drugs it uses for the execution, challenging the decision to switch to one drug from a three-drug protocol. The state Department of Corrections on Monday informed the Arizona Supreme Court of the change.

February 29, 2012

Same players, different arguments, for round 2 of Lynne Stewart sentencing appeal in Second Circuit

This new Reuters piece, headlined "NY lawyer Lynne Stewart asks court to reconsider sentence," reports on the latest sentencing appeal in a high-profile federal case out of New York. Here are some interesting details:

Comments made by New York lawyer Lynne Stewart should not have been used to increase her prison term, Stewart's attorneys told the 2nd U.S. Circuit Court of Appeals on Wednesday.

Stewart, an outspoken criminal defense attorney now disbarred, was convicted by a Manhattan federal court jury in July 2005 of helping a terrorism suspect smuggle messages to his followers from prison. She was sentenced to 28 months in prison in 2006.

Three years later, after a government appeal, a three-judge appeals court panel sent the case back to U.S. District Judge John Koeltl for resentencing on the grounds that the initial sentence was insufficient.

The same judges -- John Walker, Guido Calabresi and Robert Sack -- also heard Wednesday's appeal.

Among other issues, the appeals panel said at the time that Koeltl had not considered comments Stewart made to supporters outside the federal courthouse immediately after she was sentenced. After the October 2006 sentencing, Stewart said she could serve the 28-month sentence "standing on my head." The government also cited two other comments she made in interviews after the sentencing.

Judge Koeltl found that the comments showed that Stewart did not regret her actions and that she thought his sentence was trivial. He increased Stewart's sentence to 10 years in July 2010.

On Wednesday, attorney Herald Price Fahringer told the appeals judges that Stewart's comments were protected by free speech and should not have been used against her. By using her comments, Koeltl's sentence had produced a "chilling effect," Fahringer said, and that others in future would refrain from expressing themselves "for fear that the same thing could happen to them."

Judge Sack was skeptical. "I'm not sure that freedom of speech means absolute immunity from the consequences of what you say," he said.

Specifically, Stewart's comments in this case were not a clear-cut denial of remorse, Fahringer said, and Koeltl should have been given the benefit of the doubt.

"If she had said outright 'I have no remorse'...in a public forum... could that be something that could be used against her?" Calabresi asked. "It if was clear," Fahringer answered.

Assistant U.S. Attorney Andrew Dember defended the sentence, saying that judge Koeltl had "indicated that Stewart said she was in a position to do this again."...

Stewart is serving her sentence at the Federal Medical Center prison in Fort Worth, Texas.

Trio of noteworthy defense losses today in the Seventh Circuit

Earlier this week in this post, I reported on a trio of recent Sixth Circuit published sentencing opinions in child porn cases in which the defendants all lost. Today, it is the Seventh Circuit delivering a troika of notable criminal law opinions. A quick account of just the basics of each decision should be more than enough to whet appettites.

Remarkably, the least notable of today's trio involved an affirmance of a very long kiddie porn sentence in US v. Klug, No. 11-1339 (7th Cir. Feb. 29, 2012) (available here), which starts this way:

Joseph E. Klug pleaded guilty to producing and possessing child pornography. See 18 U.S.C. §§ 2251(a), 2252(a)(4)(B). After calculating an imprisonment range of life, the district court sentenced Klug to a total of 384 months. On appeal, Klug argues that his prison sentence is unreasonably long. We affirm the judgment.

Next up is a case, US v. Lucas, No.11-1339 (7th Cir. Feb. 29, 2012) (available here), which starts with facts that would almost be funny if not so troubling:

Following a dispute over stolen “gold” in an online video game, Trevor Lucas devised an incredibly detailed and disturbing plan over the course of a year and a half to get revenge on the would-be “thief,” CG, a minor living with his mother in Wisconsin. Lucas discovered CG’s home address, drove twenty hours to CG’s home, and impersonated a law enforcement officer in an attempt to lure CG out of the house and kidnap him. When CG’s mother refused to allow Lucas into the house, he attempted to gain entry by pointing a handgun directly at her face. But CG’s mother quickly slammed the front door before he could react, and Lucas fled while she called police. He was eventually arrested in his home state of Massachusetts. Lucas pled guilty to brandishing a firearm during a crime of violence and the district court sentenced him to 210 months’ imprisonment. He now appeals his sentence, presenting a barrage of arguments claiming the district court committed error at sentencing and the sentence was substantively unreasonable. We find none of these contentions meritorious, and accordingly affirm Lucas’s sentence.

Finally, US v. Flores-Lopez, No. 10-3803 (7th Cir. Feb. 29, 2012) (available here), seems likely to get the most attention of the bunch, not only because it is authored by Judge Posner, but also because it gets off to this start:

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant — for a modern cell phone is a computer.

Pascal F. Calogero Jr., who is a retired Louisiana Supreme Court Chief Justice now in a private law practice, has this new op-ed expressing deep concerns about the administration of the criminal justice system in the Bayou. Here are excerpts:

Our justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result. As Justice Cochran of Texas' highest criminal court observed, "If either of those two promises are not met, the criminal justice system itself falls into disrepute and may eventually be disregarded."

The Orleans Parish district attorney has recognized the burden of past cases -- where prosecutors have withheld evidence -- "hangs around the neck of our criminal justice system like an anchor" and "cripples the effectiveness of our criminal justice system, and, ultimately, makes the streets of New Orleans less safe."

Indeed, an Innocence Project New Orleans report found "favorable evidence was withheld from nine of the 36 (25 percent) men sentenced to death in Orleans Parish from 1973-2002. However, this is not just about wrongful convictions under past administrations: John Thompson, Curtis Kyles, Shareef Cousin, Dan Bright -- and as the U.S. Supreme Court recently recognized -- Juan Smith. It involves cases prosecuted today, with Brady violations in the cases of Michael Anderson and Jamal Tucker.

I still believe the majority of prosecutors are fair-minded, but it is no longer possible to call these violations rare. The problem is not rogue prosecutors; it's a system that heavily incentivizes the winning of convictions at any cost and provides no penalty for breaking rules. To ensure that citizens have access to fair trials and accurate results, we must work together to promote accountability and transparency.

Public confidence in the prosecutor and police officer are essential to a functioning criminal justice system. Confidence is necessary to ensure citizens report crime, cooperate as witnesses and participate as jurors. The Department of Justice recently found that the New Orleans Police Department "employs practices that could facilitate and hide constitutional violations of criminal suspect's rights." Prosecutors must lead by example and work with law enforcement to promote respect for the Constitution. Where corners of the Constitution are cut, the circle of trust necessary to ensure a functioning justice system is broken....

Louisiana has a history of Brady violations. This is not because Louisiana has more rogue prosecutors. Rather, we have failed to provide tools and guidance to prevent these problems. Enacting reforms will prevent wrongful convictions and restore citizens' confidence in our justice system.

Ninth Circuit tells Arizona to get its execution protocol fixed up ASAP or else

As detailed in this new AP article, a Ninth Circuit "panel on Tuesday issued a strong warning to Arizona officials who have continuously violated and changed their own written protocol for executing state death-row inmates." Here is more:

In its ruling on Tuesday, the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco turned down a request to delay two upcoming executions -- that of Robert Henry Moormann on Wednesday and of Robert Charles Towery eight days later on March 8.

While the judges declined to delay the executions, they wrote that Arizona has forced the court "to engage in serious constitutional questions and complicated factual issues in the waning hours before executions." "This approach cannot continue," the panel wrote. "We are mindful of the admonition requiring us to refrain from micro-managing each individual execution, but the admonition has a breaking point."

And unless Arizona officials make permanent changes, the judges wrote that the court might have to start monitoring each individual execution in the state to make sure the law is followed.

The ruling comes after the state Department of Corrections unexpectedly changed its execution protocol last month, one of multiple unannounced changes in recent years.

The full 26-page per curiam opinion in this matter is available at this link.

February 28, 2012

Initiative to end state pot prohibition officially makes 2012 ballot in Colorado

The term Rocky Mountain High could take on an extra meaning after Election Day this year as a result of this news out of Colorado:

Colorado voters will be asked to decide whether to legalize the recreational use of marijuana in a November ballot measure, setting up a potential showdown with the federal government over America's most commonly used illicit drug.

The measure, which would legalize possession of small amounts of marijuana by adults, is one of two that will go to voters in November after a Washington state initiative to legalize pot earned enough signatures last month to qualify for the ballot there.

"This could be a watershed year in the decades-long struggle to end marijuana prohibition in this country," Art Way, Colorado manager of the Drug Policy Alliance, said in a statement. The Alliance supports the initiative. "Marijuana prohibition is counterproductive to the health and public safety of our communities. It fuels a massive, increasingly brutal underground economy, wastes billions of dollars in scarce law enforcement resources, and makes criminals out of millions of otherwise law-abiding citizens."

Colorado is one of 16 states and the nation's capital that already allow marijuana use for medical purposes even as cannabis remains classified as an illegal narcotic under federal law -- and public opinion is sharply divided on the merits of full legalization.

No states allow marijuana for recreational use, and California voters turned back a ballot initiative to legalize the drug for such use in 2010, in part because of concerns about how production and sale of the drug would be regulated.

Since then, the U.S. Department of Justice has cracked down on medical cannabis operations in several mostly western states including Colorado and Washington, raiding dispensaries and growing operations and threatening landlords with prosecution.

A spokesman for Colorado Attorney General John Suthers said on Monday that the office opposes the legalization proposal. "The attorney general will oppose any measure that makes marijuana more accessible," spokesman Mike Saccone said.

The Colorado measure, if approved by voters, would legalize possession of up to an ounce of marijuana or up to six plants for cultivation, said Mason Tvert, co-founder of the Campaign to Regulate Marijuana Like Alcohol. It would also set up a regulatory framework for the sale of cannabis products and the application of sales and excise taxes, in addition to legalizing the cultivation of industrial hemp.

A provision of the measure would also annually earmark the first $40 million in tax revenue generated from pot sales to fund public school construction, Tvert said, although he could not estimate how many tax dollars would be generated. Any remaining money over $40 million would go to the state's general fund, he said.

Colorado voters rejected a measure to legalize small amounts of cannabis in 2006, but Tvert said the new proposal with its taxing provision, and potential jobs created through the marijuana industry and peripheral businesses would make it more palatable to voters. "The time is right," he said, citing a December poll by Public Policy Polling that showed 49 percent of Colorado voters now support legalization.

I had the great pleasure yesterday to serve as a judge in the final round of OSU's moot court competition (with two terrific real Ohio jurists, as detailed here), and the case being argued was Miller v. Alabama, one of the two cases to be heard by SCOTUS next month concerning the constitutionality of sentencing a 14-year-old killer to life without parole. These oral arguments, combined with all of the primary briefing and amicus briefing in Miller (linked here) and the companion case Jackson v. Hobbs (linked here), confirmed my instinct that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their work in Roper and Graham.

Regular readers likely will not be surprised to hear that I am hoping the Supreme Court find the LWOP sentences imposed in Jackson and Miller to be unconstitutional. But readers may be surprised to hear that I continue to be somewhat concerned by the Justices' decision in Graham to adopt a bright-line approach to the Eighth Amendment rather than the more nuanced case-by-case approach as was suggested by Chief Justice Roberts in his Graham concurrence. And my concerned is heightened because the advocates and amici in Jackson and Miller are understandably inclined to push bright-line arguments: the defense side urges an Eighth Amendment rule that JLWOP is always unconstitutional (at least for younger juves), while the states seek a ruling that JLWOP us never unconstitutional for the crime of first-degree murder.

For a bunch of reasons (only some of which are set forth in this amicus brief that I put together along with a group of my students for these cases), I have an inherent disaffinity for rigid and simplistic bright-line rules at sentencing. And, especially as the Justices seem finally ready to place a few (long overdue) constitutional limits on extremely severe prison sentences, I think Eighth Amendment jurisprudence would benefit from more nuanced case-by-case developments than by adoption (or rejection) of various bright-line rules. Moreover, the case-specific offense and offender facts in Miller and especially in Jackson, seem to make lead me to think that embrace of bright-line rules in these cases could end up doing more long-term harm than good to sound constitutional (and sub-constitutional) sentencing jurisprudence.

Is California's prison population reduction going as well as it seems?

The question in the title of this post is prompted by this local article headlined "California prisons clearing out." Here are excerpts:

Images of California's overcrowded prisons are so striking that the U.S. Supreme Court included two photographs of the problem in last year's landmark opinion that forced the state to address the issue.

On Friday, state corrections leaders will announce they have made an important step toward their goal to ease overcrowding, finally getting rid of the last of thousands of bunks that were crammed into day rooms, gymnasiums and other spaces to hold inmates.

In a news conference scheduled to be held at the Deuel Vocational Institution in Tracy, corrections chief Matthew Cate and other officials are scheduled to announce the end of what the department itself calls "iconic images of (the) overcrowding crisis."...

The use of what the California Department of Corrections and Rehabilitation calls "nontraditional beds" peaked at just under 20,000 in 2007, Callison said. Their use stemmed from the prison system at one point holding twice as many inmates as the 80,000 it was designed to house. "The degree of overcrowding in California's prisons is exceptional ..." the Supreme Court concluded in its May 2011 opinion, which described in graphic detail how officials found room to house them....

Following the court's order that the state reduce its prison population by 33,000 inmates to bring it to 137.5 percent of capacity, state officials went to work. Gov. Jerry Brown's "realignment" plan, which shifts responsibility for some offenders considered low-level, nonviolent and nonserious to county jails, has since helped cut the prison population from about 144,000 inmates to about 127,770.

"The number of nontraditional beds had been falling since '07, but realignment has basically taken us over the finish line," Callison said. The department hopes to reduce overall population to 137.5 percent of capacity -- about 110,000 inmates -- by June 2013.

It is surely way too early to reach a final judgment (or even a mid-stream judgment) about whether the Plata prison overcrowding litigation and California's prison-population-reduction responses has proven to be a great public policy success. But I continue to see in the California papers positive stories like the one reported here, while I am yet to see many stories reflecting the parade of horribles sometimes described by those who opposed the various prison reduction orders during the Plata litigation. Thus the question in the title of this post.

"From 'Collateral' to 'Integral': The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation"

The title of this post is the title of this notable piece authored by J. McGregor Smyth Jr., which is now available via SSRN. Here is part of the abstract:

From the moment of arrest, people charged with crimes find themselves caught in a web of punitive sanctions, in danger of losing their jobs, homes, children, and right to live in this country. Politicians over the past thirty years, eager to be “tough on crime” at the expense of being smart on crime, have piled layer upon layer of these “collateral” consequences on even a person’s most minor involvement in the criminal justice system.

As this web grew to overshadow the traditional criminal sanctions for most offenses, criminal courts and practitioners struggled to create legal justifications for ignoring it. The “collateral consequences” doctrine resulted. Arising out of Fifth Amendment challenges to convictions on the theory that courts had not adequately notified people of this web at plea or sentencing, this doctrine draws a sharp but false distinction between “direct” consequences of criminal proceedings (such as incarceration) and “collateral” consequences (such as deportation).

In a move last Term that shocked commentators and practitioners alike, the Supreme Court ignored decades of lower court case law to effectively repudiate this doctrine — which has been one of the most dominant (and most harmful) legal fictions of the criminal justice system. In Padilla v. Kentucky, the Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis, however, reaches far beyond advice on immigration penalties, extending to any and all penalties intimately related to criminal charges. The Court’s recasting of Sixth Amendment jurisprudence will have significant ripple effects, leaving a rich set of legal issues for the courts to resolve in the coming years. These issues include those related to post-conviction relief, the Ex Post Facto Clause, Eighth Amendment definitions of punishment, the adequacy of defense funding, the expansion of the right to a jury trial, and the extension of the right to counsel.

This Article examines the practical effect of Padilla for criminal defense attorneys currently working with clients on pending cases.... This Article uses the legal reasoning of Padilla to outline a structure for approaching the daunting process of identifying and adequately advising clients about the wide range of penalties resulting from criminal justice involvement. The Article focuses not on post-conviction relief, but on productive and proven strategies for improved trial level advocacy going forward.

February 27, 2012

A helpful reader alerted me to this new article appearing in the Atlanta Journal-Constitution, which provides another notable example of a notable state responding to budget concerns with sentencing reforms long urged by critics of "tough-on-crime" sentencing policies. The piece is headlined "Sweeping criminal justice changes proposed," and here are excerpts:

State legislative leaders on Monday proposed sweeping changes to criminal justice in Georgia, including a plan to reduce prison terms for some offenders and divert others into treatment rather than locking them up.

House Bill 1176 asserts that prison is by far the most expensive way to punish nonviolent offenders and that other methods are both cheaper and more effective. The reform effort would save tens of millions of dollars by reserving prison beds for violent criminals, backers say. “This initiative represents a significant first step in bringing conservative common sense to our criminal justice system,” said Rep. Rich Golick, R-Smyrna, the lead sponsor of the bill.

But the bill did not immediately win the support of Gov. Nathan Deal, who has pledged to lead the state’s effort to reform its criminal justice system. Deal said the bill failed to include all of the recommendations of a special council appointed to study the state’s approach to criminal sentencing.

Georgia spends more than $1 billion a year on prisons. Maintaining current sentencing laws would require Georgians to spend another $264 million over the next five years for more prison beds, the special council found.

“The governor will need to see changes in the current bill that will bring it back toward the recommendations of the Criminal Justice Reform Council,” said Brian Robinson, Deal’s spokesman. “The process is intended to reduce costs to taxpayers, and it’s his opinion that this bill might actually increase costs.”...

The bill would allow the Department of Corrections to start a pilot program that would identify the lowest-risk nonviolent drug and property offenders headed to prison and allow judges to divert them to community-based supervision programs....

The bill will be considered by a special joint committee of the state House and Senate, instead of following the usual process of being reviewed separately by committees of the two chambers.

We sure know that the state sentencing times have changed when a bill to reduce prison terms for some offenders and divert others into treatment rather than locking them up is praised by a Republican legislator in Georgia as "conservative common sense" while the state's Republican Governor worries that the bill does not go far enough to reduce prison terms and associated costs.

The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases. For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio. But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.

Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:

Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.

US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:

Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B). Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence. Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.

US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses).

There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness. But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months).

Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham.

Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others. I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.

Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.

Thoughtful discussion of too-often forgotten story of misdemeanors

Professor Alexandra Natapoff has this interesting new piece on SSRN titled simply "Misdemeanors." As this abstract highlights, it covers lots of important ground that rarely gets the attention merited:

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., “criminalized,” with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system’s dynamics and dysfunctions.

Another notable consequence of very long prison sentences

Because serious crime has long been a young man's game, prisons have historically had to worry most about how to manage and pacify young men until the finished serving their time. But, as this front-page Sunday New York Times article details, the much longer sentencing terms of the modern era means a new challenge for managing parts of the prison population. The article is headlined simply "Life, With Dementia," and here are excerpts:

Dementia in prison is an underreported but fast-growing phenomenon, one that many prisons are desperately unprepared to handle. It is an unforeseen consequence of get-tough-on-crime policies — long sentences that have created a large population of aging prisoners. About 10 percent of the 1.6 million inmates in America’s prisons are serving life sentences; another 11 percent are serving over 20 years.

And more older people are being sent to prison. In 2010, 9,560 people 55 and older were sentenced, more than twice as many as in 1995. In that same period, inmates 55 and older almost quadrupled, to nearly 125,000, a Human Rights Watch report found.

While no one has counted cognitively impaired inmates, experts say that prisoners appear more prone to dementia than the general population because they often have more risk factors: limited education, hypertension, diabetes, smoking, depression, substance abuse, even head injuries from fights and other violence.

Many states consider over-50 prisoners elderly, saying they age up to 15 years faster. With many prisons already overcrowded and understaffed, inmates with dementia present an especially difficult challenge. They are expensive — medical costs for older inmates range from three to nine times as much as those for younger inmates. They must be protected from predatory prisoners. And because dementia makes them paranoid or confused, feelings exacerbated by the confines of prison, some attack staff members or other inmates, or unwittingly provoke fights by wandering into someone else’s cell.

“The dementia population is going to grow tremendously,” says Ronald H. Aday, a sociologist and the author of “Aging Prisoners: Crisis in American Corrections.” “How are we going to take care of them?” Some prison systems are confronting that now. Many would like to transfer demented inmates to nursing homes, but their often-violent crimes make states reluctant to parole them and nursing homes reluctant to take them.

New York has taken the top-dollar route, establishing a separate unit for cognitively impaired inmates and using professional caregivers, at a cost of about $93,000 per bed annually, compared with $41,000 in the general prison population. Pennsylvania and other states are giving mental health workers special dementia training.

But some struggling prison systems, including those in Louisiana and California, are taking a less expensive but potentially riskier approach. They are training prisoners to handle many of the demented inmates’ daily needs.

February 26, 2012

"What life is like for 14-year-old killer tried as an adult"

Paul Henry Gingerich awoke on the morning of his 14th birthday to the sound of a voice -- his prison guard. "Happy birthday," she said.

It was 6 o'clock. Paul would just as soon been given a few more minutes to sleep. But in a place where he must ask permission to go to the bathroom, where he eats every meal under close surveillance and where birthdays aren't much different from any other day, it was a nice gesture for one of the state's most controversial inmates.

Paul Gingerich is believed to be the youngest person in Indiana ever sentenced to prison as an adult. He was still 12 years old when he arrived here at the Pendleton Juvenile Correctional Facility, the state's maximum security prison for children. He had such a small frame and such a baby face that one of his new teachers -- the prison has a school -- asked: "What is a 7-year-old doing in our facility?"

Yet Paul was also a killer. He had pleaded guilty to conspiracy to commit murder after he and a friend fired four bullets into the friend's stepdad. Each boy received 25 years, with the possibility that, for good behavior, they could get out in about half that time. They would still be young men, but young men who had grown up in prison.

In Paul's case, that means living in a cell with a steel door and bare block walls in a remote corner of Pendleton. Home consists of a mattress on a concrete slab, a small desk and a chair and a window spliced with thick bars. Paul's view is of a small patch of grass, a tall fence and rolling wave of razor sharp concertina wire.

Here, in this place, Paul has grown nearly 3 inches to about 5-foot-8, sprouted peach fuzz, popped his first pimples, had his voice change and -- now -- marked two birthdays. It is also a place that -- should his lawyer pull off an epic reversal -- Paul hopes to soon leave.

Notable example of how death debate impacts other sentencing reforms

The Connecticut legislature is again gearing up to debate potential repeal of the state's death penalty, and this new local article provides a notable example of how capital conversations can readily distort consideration of other distinct sentencing reform issues. The piece is headlined "Key Lawmaker Ties Death Penalty Vote To Repeal Of Early-Release Credits," and here are excerpts:

State Sen. Andrew Roraback, a longtime opponent of the death penalty, said Friday he would not back a repeal bill unless lawmakers also reverse a series of changes to the state's criminal justice policy.

Roraback's vote is considered key if capital punishment is to be abolished in Connecticut this year. The legislature's judiciary committee announced earlier this week that it intends to raise the issue this session.

Roraback, a Republican from Goshen, is running for Congress in the 5th District and has been hammered by opponent Lisa Wilson-Foley for his opposition to capital punishment. Wilson-Foley began running radio ads this week attacking "the liberal politicians and special interests in Hartford trying to eliminate the death penalty" and urging listeners to call Roraback's office.

"Nothing has changed with respect to my thinking on the death penalty," Roraback said. "I don't believe the state should be in the business of extinguishing life but I also this year want to make sure the state isn't in the business of breaking its promises. Last year we passed an early-release bill that was a breach of faith with victims of crime ... and their families because it is breaking a promise that was made at the time of sentencing," Roraback added.

He is referring to a bill approved during the 2011 legislative session that establishes an early-release program for prisoners, including some who were convicted of violent offenses such as rape and arson. Roraback and other members of the Republican caucus who oppose the bill called it bad public policy. Under the policy, inmates may earn up to five days a month off of their sentence for good behavior and participation in programs that aim to reduce recidivism. The credits can be revoked if prisoners misbehave or fail to comply with the program....

Roraback said he intends to offer an amendment to a death penalty repeal bill that would also repeal the early-release credits. "We have an opportunity to, in connection with the death penalty vote, to restore integrity to our sentencing system," he said. "I will vote to repeal the death penalty if this provision is included, Otherwise, I will not."

Roraback said his congressional aspirations and Wilson-Foley's criticism have nothing to do with his desire to link his vote on the death penalty with his drive to repeal the criminal policy changes....

The repeal bill's fate in the Senate has always been tumultuous. In 2009, it passed the chamber after several longtime opponents, among them Democratic Sens. Gary LeBeau and Edith Prague, changed their vote. But the measure was vetoed by Gov.M. Jodi Rell.

In 2011, death penalty opponents thought they would prevail, thanks to the election of Malloy, a capital punishment foe. But the issue never came up for a vote after Prague and Sen. Andrew Maynard announced their opposition to the repeal bill. Both lawmakers cited the brutal home invasion in Cheshire and the quiet persuasion Dr. William Petit, the sole survivor, as reasons for their reversal.